The ICC on Trial
With respect to the article “Reasonable Doubts” on the International Criminal Court (Larry Krotz, Nov/Dec 2003), your magazine has succeeded in provoking and even annoying me. The ICC is starting out on shaky ground, as most revolutionary ideas do, and because of this has to prove itself to be a body devoid of random and politically motivated prosecutions. But the Rome Statute of the ICC contains many safe-guards against this, including a pre-trial chamber – where all prosecutions are investigated formally before charges are laid – and a rule stating that there can only be charges laid if the home country cannot or will not prosecute the criminal. Every judge of the ICC is a legal professional; there are no serving diplomats or country representatives involved anywhere in the proceedings of the ICC.

These factors, combined with the threat of certain failure if politics enters into the equation, surely help keep the courtroom focused primarily on the task at hand.

With respect to the possible effect of the ICC on our domestic courts, where was that criticism when Canada signed the Universal Declaration of Human Rights? For that matter, where was it with any of the many international treaties that Canada has signed and ratified over the past fifty years? These treaties all affect Canada’s domestic laws, and sometimes in very drastic ways.

There are certainly some problems with the ICC, including the lack of participation of many prominent members of the international community. But if it’s viewed as the start of a new regime, where people can and will be prosecuted for the worst kinds of crimes against human rights, then what we have is an effective mechanism for distributing a kind of justice that the world has never before known.
Nathaniel Lowbeer-Lewis
Montreal

Larry Krotz quotes Alfred Rubin, one critic of the ICC, as saying that “[t]he attempt to create an international criminal court assumes that in all important ways the international legal order is similar to the municipal legal orders with which we are familiar.” But that assumption, which I agree is wrong, doesn’t underlie arguments in support of the ICC. The very fact that states need to accept the Court’s authority suggests that its architects are well aware of the difference between international and domestic law. More importantly, however, the international legal order is similar to domestic legal orders in one very important respect: both are inescapably political.

The furor that surrounds abortion and the death penalty in the United States (and there are countless other examples) illustrates plainly that domestic law is by no means immune to politics. Members of the critical legal-studies movement have long argued that the principles underlying Western legal systems are not neutral, but reflect particular historically and culturally contingent understandings about reason, right, justice, etc.

The claim that differing legal traditions doom the ICC is also unfounded. While adversarial and inquisitorial systems are clearly different in important ways, they share a common European heritage. Moreover, as those two systems have spread throughout the world – to, for example, Latin America – they have been blended with local legal practices in ways that are not obviously problematic. This suggests that having the two operate side-by-side is not necessarily unworkable.
Jacob Schiff
Chicago

Rearming Russia?